[2023] KEHC 21008 (KLR)
The court declined to determine the substance of the petition due to the absence of the Court of Appeal record. The judge held that without the record of proceedings and judgment from the Court of Appeal, it is not possible to assess the applicant's claims of constitutional violations or to consider mitigation and...
Source-derived case information.
- Citation
- [2023] KEHC 21008 (KLR)
- Parties
- Applicant: Paul Lutinga Tundo; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E022 of 2021
- Procedural Posture
- Criminal Petition / Ruling on Preliminary Issue
- Outcome
- No substantive determination; directions issued for filing of Court of Appeal record.
- Judges
- SC Chirchir
- Legal Topics
- Robbery With Violence, Constitutional Rights Violation, Sentencing Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Lutinga Tundo
Applicant
Director of Public Prosecution
Respondent
Procedural Posture
Criminal Petition / Ruling on Preliminary Issue
Legal Issues
- 1 Whether the applicant's constitutional rights under Articles 50(2)(p), 26(1), 27(1),(2), 28, 29(d)f, 2(1)(3)(4) and (5) of the Constitution were violated.
- 2 Whether the court can consider mitigation and impose an appropriate sentence in the absence of the Court of Appeal record.
Ratio Decidendi
The court declined to determine the substance of the petition due to the absence of the Court of Appeal record. The judge held that without the record of proceedings and judgment from the Court of Appeal, it is not possible to assess the applicant's claims of constitutional violations or to consider mitigation and resentence. The applicant was directed to file the necessary records, after which the court would issue further directions. The decision underscores the necessity of a complete appellate record for the fair and proper adjudication of post-conviction constitutional petitions and sentence reviews.
Court Disposition
No substantive determination; directions issued for filing of Court of Appeal record.
Orders
- The applicant is directed to file the record of proceedings and judgment of the Court of Appeal.
- Further directions on the substance of the petition will be given once the required records are filed.
Full Case Text
Judgment text and source record
22 paragraphs
Tundo v Director of Public Prosecution (Criminal Petition E022 of 2021) [2023] KEHC 21008 (KLR) (28 July 2023) (Ruling)
Neutral citation: [2023] KEHC 21008 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Petition E022 of 2021
SC Chirchir, J
July 28, 2023
Between
Paul Lutinga Tundo
Applicant
and
Director of Public Prosecution
Respondent
(Arising from Mumias Chief Magistrate’s Criminal Case No 393 of 2006. )
Ruling
1. The Applicant’s undated petition seeks for a declaration that his rights under Article 50(2)(p), 26(1), 27(1),(2) 28, 29(d)f, 2(1)(3)(4) and (5) of theConstitution have been violated.
2. He further asks the court to consider his mitigation and come up with an appropriate sentence.
3. From the records available, the petitioner was charged with the offence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code, in Mumias Chief Magistrate’s Criminal Case No 393 of 2006.
4. He was convicted and sentenced to death. The conviction and sentence was upheld by the High Court in Kakamega Criminal Appeal No 82 of 2007. The petitioner further states that he then moved to the court of Appeal in Kisumu, where his Appeal was again, dismissed
5. However, there are no records in respect to the Court of Appeal proceedings. Consequently, I am unable to make a decision on the petition in the absence of the records of the court of Appeal.
6. I also take note of the fact that the petitioner has the benefit of legal representation. I therefore direct that the petitioner file the record of proceedings and Judgement of the Court of Appeal. I will give further directions on the substance of the petition once the record of proceedings and Judgment of the court of Appeal is filed.
DATED , SIGNED AND DELIVERED VIRTUALLY AT KAKAMEGA THIS 28TH DAY OF JULY, 2023. S. CHIRCHIRJUDGEIn the presence of:-